FEDERAL COURT OF

McHugh v Australian Jockey Club Limited (No 13) [2012] FCA 1441

Citation: McHugh v Australian Jockey Club Limited (No 13) [2012] FCA 1441

Parties: BRUCE MCHUGH v AUSTRALIAN JOCKEY CLUB LIMITED, RACING CLUB LIMITED, AUSTRALIAN RACING BOARD LIMITED, THOROUGHBRED BREEDERS AUSTRALIA LIMITED and AUSTRALIAN TURF CLUB LIMITED

File number: NSD 1187 of 2009

Judge: ROBERTSON J

Date of judgment: 19 December 2012

Catchwords: COMPETITION – s 45 of the Competition and Consumer Act 2010 (Cth) – thoroughbred horses – Australian Stud Book – thoroughbred – artificial insemination – restricting or prohibiting the entry in the Australian Stud Book of thoroughbred horses bred by artificial insemination – restricting or prohibiting the entry into races of thoroughbred horses bred by artificial insemination – whether contract, arrangement or understanding – aggregation of provisions – whether provisions have or likely to have effect of substantially lessening competition in a market – thoroughbred breeding market – thoroughbred acquisition market – scope of market – whether thoroughbreds bred by natural cover or by artificial insemination sufficiently close substitutes – appropriate counterfactual – rules of sport

TRADE AND COMMERCE – restraint of trade – reasonableness of restraint when imposed – relevance of later events – whether later events foreseeable

Legislation: Competition and Consumer Act 2010 (Cth) s 45 Evidence Act 1995 (Cth) ss 81, 128 Racing Act 1958 (Vic) Racing Act 1999 (ACT) s 92 Racing Act 2002 (Qld) ss 91, 79 Racing and Betting Act 1983 (NT) ss 23, 42, 44 Racing and Wagering Act 2003 (WA) s 45 Racing (Proprietary Business Licensing) Act 2000 (SA) s 25 - 2 -

Racing Regulation Act 2004 (Tas) ss 11, 111 Act 1996 (NSW) ss 4, 13, 14, 42

Cases cited: Adamson v Rugby League Ltd (1991) 31 FCR 242 followed Aerial Taxi Cabs Co-operative Society Ltd (t/as Canberra Cabs) v Lee (2000) 102 FCR 125 referred to Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 followed ASX Operations Pty Ltd and Another v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 followed Australian Competition and Consumer Commission v CC (New South Wales) Pty Ltd) (1999) 92 FCR 375 followed Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305 referred to Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162 referred to Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321 followed Australian Competition and Consumer Commission v Metcash Trading Ltd (2011) 198 FCR 297 cited Buckley v Tutty (1971) 125 CLR 353 considered Commonwealth Aluminium Corp Ltd v Attorney-General [1976] Qd R 231 referred to Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 64 FLR 238 followed Director-General of Education v Suttling (1987) 162 CLR 427 referred to Geraghty v Minter (1979) 142 CLR 177 followed Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd (unreported, New South Wales Court of Appeal, 23 December 1988) referred to Lithgow City Council v Jackson (2011) 244 CLR 352 applied Meyers v Casey (1913) 17 CLR 90 applied Lindner v Murdoch’s Garage (1950) 83 CLR 628 followed New South Wales Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691 referred to News Limited v Australian League Ltd (1996) 64 FCR 410 cited Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126 followed Raguz v Sullivan (20